IN THE CIRCUIT COURT IN AND FOR PINELLAS COUNTY, FLORIDA
SIXTH JUDICIAL CIRCUIT
In re: The GUARDIANSHIP OF Theresa Marie SCHIAVO, Incapacitated. Michael SCHIAVO, as Guardian of the person of Theresa Marie Schiavo,
v. Robert SCHINDLER and Mary Schindler, Respondents.
Nov. 22, 2002.
THIS CAUSE came on to be heard for an evidentiary hearing on the Motion for Relief from Judgment filed by Robert and Mary Schlinder ("Respondents") pursuant to the Mandate issued by the Second District Court of Appeal on October 17, 2001 ("Mandate"). Before the court were Patricia Fields Anderson, Esquire, attorney for Respondents; and George J. Felos, Esquire, attorney for Michael Schiavo, as Guardian of the Person of Theresa Marie Schiavo ("Petitioner"). The evidentiary hearing commenced on October 11, 2002 and concluded on October 22, 2002 during which time the court heard testimony on separate days from the treating physician of Terry Schiavo and five board- certified expert physicians, two selected by the Petitioner, two selected by the Respondents and one selected by the court since the parties could not agree upon an independent fifth expert. This procedure was pursuant to the Mandate. The court also received into evidence numerous exhibits including copies of published medical articles, copies of summaries of published medical articles, CT Scans and videos of medical examinations. The court also had the opportunity to observe the witnesses when they testified, to note body language, pauses, inflections and other non-verbal factors utilized in determining credibility which would not appear in a transcript of these proceedings. The court also heard excellent closing arguments from the attorneys who were well prepared and quite knowledgeable in this area of the law. Based thereupon, the court makes the following findings of fact and conclusions of law. Initially, the Mandate required the court to hear testimony from five expert medical witnesses to determine whether or not "new treatment offers sufficient promise of increased cognitive function in Mrs. Schiavo's cerebral cortex--significantly improving the quality of Mrs. Schiavo's life--so that she herself would elect to undergo that treatment and would reverse the prior decision to withdraw life-prolonging procedures". The Mandate provided that the evidentiary hearing was "only for the purpose of assessing her current medical condition, the nature of the new medical treatment and their acceptance in the relevant scientific community, the probable efficacy of these new treatments and any other factors the trial court deems relevant". Based thereupon, this court declined to take lay testimony and also declined to consider other factors inasmuch as the focus of the Mandate was with new medical treatment and its probable effect upon Terry [sic] Schiavo.
In response to the Mandate, the court directed that a physical examination of Terry Schiavo be done by her treating physician. The court then directed Dr. Victor Gambone, M.D. testify, essentially to set the stage and provide a basis for the five experts to begin their examinations and ultimately provide their testimony. The court does not consider the testimony of Dr. Gambone to be relevant to the ultimate decision this court is required to make, confining itself instead to the testimony of the five experts for that purpose. Additionally, the video examinations which formed a part of the evidentiary hearing and which the court viewed in their entirety at the requests of both parties, contained conversations between the parties and various doctors. Some of these conversations could be considered probative as either admissions against interests or bolstering of positions. Nevertheless, the parties were not under oath at that time and, as a consequence, the court has not and will not consider those statements except to assess any response or non-response that Terry Schiavo may have had thereto.
All of the five expert medical physicians have very impressive credentials and resumes. The record documents those credentials so they need not be set forth herein. All are board-certified which was a requirement of the Mandate. Several teach or have taught in medical colleges, several are prolific writers for medical journals, some are young and some are not so young but, by and large, the court heard five days of excellent medical testimony concerning the issue of persistent vegetative state, possible treatment options and how these may or may not have an effect on [sic] Terry Schiavo. They were all well prepared, generally having reviewed all of the available medical records, videos, etc. That is not to say, however, that some of the testimony was more credible than other testimony as set forth hereafter.
The majority of the testimony before the court dealt with the current medical condition of Terry [sic] Schiavo. Of course, it was important to determine that in order for there to be valid opinions as to new treatments and its probable efficacy upon her. Incidentally, the court early-on defined "new treatment" to include any treatment that had not been attempted since it did not seem appropriate to foster a debate as to whether or not a treatment discovered five years ago was in fact "new". The video tapes reviewed by the court and which were featured prominently in the testimony of the doctors were obviously directed to her present physical condition.
Three of the five doctors testified that Terry [sic] Schiavo was in a persistent vegetative state, although Dr. Cranford felt it more appropriate to phrase it permanent vegetative state which meant that the condition was irreversible. Two of the doctors felt that she was not in a persistent vegetative state. These two sets of opinions had little in common. Those who felt she was not in a persistent vegetative state placed great emphasis upon her interaction with her mother during Dr. Maxfield's examination and the tracking of a balloon. Those who felt that she was in a persistent vegetative state felt that her actions were neither consistent nor reproducible but rather were random reflexes in response to stimuli. However, the court has not and will not make its decision or a simple head count but will instead consider all factors.
At first blush, the video of Terry [sic] Schiavo appearing to smile and look lovingly at her mother seemed to represent cognition. This was also true for how she followed the Mickey Mouse balloon held by her father. The court has carefully viewed the videotapes as requested by counsel and does find that these actions were neither consistent nor reproducible. For instance, Terry [sic] Schiavo appeared to have the same look on her face when Dr. Cranford rubbed her neck. Dr. Greer testified she had a smile during his (non-videoed) examination. Also, Mr. Schlinder [sic] tried several more times to have her eyes follow the Mickey Mouse balloon but without success. Also, she clearly does not consistently respond to her mother. The court finds that based on the credible evidence, cognitive function would manifest itself in a constant response to stimuli.
Dr. Hammesfahr testified that he felt that he was able to get Terry Schiavo to reproduce repeatedly to his commands. However, by the court's count, he gave 105 commands to Terry Schiavo and, at his direction, Mrs. Schindler gave an additional 6 commands. Again, by the court's count, he asked her 61 questions and Mrs. Schindler, at his direction, asked her an additional 11 questions. The court saw few actions that could be considered responsive to either those commands or those questions. The videographer focused on her hands when Dr. Hammesfahr was asking her to squeeze. While Dr. Hammesfahr testified that she squeezed his finger on command, the video would not appear to support that and his reaction on the video likewise would not appear to support that testimony.
The record is replete with the doctors disagreeing over what the videotapes appeared to portray. For instance, was it a visual orienting reflex or was it tracking. Was it a cognitive focus of the eyes or was it a startle response looking to the sound. Perhaps the most compelling testimony was that of Dr. Bambakidis who explained to the court the agony and soul-searching which he underwent to arrive at his opinion that Terry [sic] Schiavo is in a persistent vegetative state. He concluded that all the data as a whole supports permanent vegetative state. While the others may have gone through such an analysis, their testimony does not indicate that.
Another issue involved the piano music played via cassette tape in her room during Dr. Hammesfahr examination. Dr. Maxfield testified she related to it and "tried to sing". However, this music was played markedly louder than any other music or voice commands of the doctors. It was probably louder than the handclasp or dropped objects that always seemed to produce a startle reflex. Dr. Greer testified that the length of the reflex depends on the direction of the stimulation.
Dr. Maxfield also felt that '02 CT Scan showed improvement in the quality of the remaining brain matter and that one reason Terry Schiavo was not in a persistent vegetative state was that she could swallow her own saliva and breathe on her own. These views were not supported by any of the other doctors and Drs. Greer, Bambakidis and Cranford strongly disagreed with his '02 CT Scan opinion. Dr. Cranford further testified that saliva handling is from the brain stem, a reflex.
Viewing all of the evidence as a whole, and acknowledging that medicine is not a precise science, the court finds that the credible evidence overwhelmingly supports the view that Terry Schiavo remains in a persistent vegetative state. Even Dr. Maxfield acknowledges that vegetative patients can track on occasion and that smiling can be a reflex.
The real issue in this case, however, deals with treatment options for Terry [sic] Schiavo and whether or not they will have any positive affect so as to "significantly improve her quality of life." The treatment options essentially were the vasodilatation therapy offered by Dr. Hammesfahr and the hyperbaric therapy proposed by Dr. Maxfield. While none of the doctors are really involved in stem cell therapy, it was discussed at great length by each of them. Perhaps one of the few agreements between these experts is that stem cell research is currently at the experimental stage and is years away from being accepted either medically or politically. It would not appear from the testimony that this is a viable treatment option at this time.
Hyperbaric therapy has been in use for more than a century. It is used abroad far more than it is used domestically. Medicare recognizes only eleven procedures involving hyperbaric therapy while Russia recognizes almost seven times that many. Dr. Maxfield felt there was an 80% chance of improvement in Spect Scan results from hyperbaric therapy. He has seen such with similar patients. Also, he felt there was a significant probability Terry [sic] Schiavo would improve cognitive ability with hyperbaric treatment. Drs. Greer, Bambakidis and Cranford have all referred patients for hyperbaric therapy but none for this type of brain injury. They felt that such therapy would have no affect on Terry [sic] Schiavo. It is interesting to note the absence of any case studies since this therapy is not new and this condition has long been in the medical arena.
Dr. Hammesfahr feels his vasodilatation therapy will have a positive affect on Terry Schiavo. Drs. Greer, Bambakidis and Cranford do not feel it will have such an affect. It is clear that this therapy is not recognized in the medical community. Dr. Hammesfahr operates his clinic on a cash basis in advance which made the discussion regarding Medicare eligibility quite irrelevant. A lot of the time also was spent regarding his nominations for a Nobel Prize. While he certainly is a self-promoter and should have had for the court's review a copy of the letter from the Nobel committee in Stockholm, Sweden, the truth of the matter is that he is probably the only person involved in these proceedings who had a United States Congressman recommend him for such an award. Whether the committee "accepted" the nomination, "received" the nomination or whatever, it is not that significant. What is significant, however, and what undemises [sic] his creditability [sic] is that he did not present to this court any evidence other than his generalized statements as to the efficacy of his therapy on brain damaged individuals like Terry [sic] Schiavo. He testified that he has treated about 50 patients in the same or worse condition than Terry [sic] Schiavo since 1994 but he offered no names, no case studies, no videos and no tests results to support his claim that he had success in all but one of them. If his therapy is as effective as he would lead this court to believe, it is inconceivable that he would not produce clinical results of these patients he has treated. And surely the medical literature would be replete with this new, now patented, procedure. Yet, he has only published one article and that was in 1995 involving some 63 patients, 60% of whom were suffering from whiplash. None of these patients were in a persistent vegetative state and all were conversant. Even he acknowledges that he is aware of no article or study that shows vasodilatation therapy to be an effective treatment for persistent vegetative state patients. The court can only assume that such substantiations are not available, not just catalogued in such a way that they can not be readily identified as he testified.
Neither Dr. Hammesfahr nor Dr. Maxfield was able to credibly testify that the treatment options that they offered would significantly improve Terry Schiavo's quality of life. While Dr. Hammesfahr blithely stated he should be able to get her to talk, he admitted he was not sure in what way he can improve her condition although he feels certain her can. He also told the court that "only rarely" do his patients have no improvement. Again, he is extremely short of specifics. Dr. Maxfield spoke of a "chance" of recovery although he stated there was a significant probability that hyperbaric therapy would improve her condition. It is clear from the evidence that these therapies are experimental insofar as the medical community is concerned with regard to patients like Terry Schiavo which is borne out by the total absence of supporting case studies or medical literature. The Mandate requires something more than a belief, hope or "some" improvement. It requires this court to find, by a preponderance of the evidence, that the treatment offers such sufficient promise of increased cognitive function in Mrs. Schiavo's cerebral cortex so as to significantly improve her quality of life. There is no such testimony, much less a preponderance of the evidence to that effect. The other doctors, by contrast, all testified that there was no treatment available to improve her quality of life. They were also able to credibly testify that neither hyperbaric therapy nor vasodilatation therapy was an effective treatment for this sort of injury. That being the case, the court concludes that the Respondents have not met the burden of proof cast upon them by the Mandate and their Motion. Accordingly, it is ORDERED AND AJDUDGED [sic] that the Motion for Relief from Judgment filed herein by Robert and Mary Schindler, Respondents, be and the same is hereby denied. In the event the Motion for Relief from Judgement [sic] is denied, the Mandate also requires this court to follow the dictates of the prior Mandate of the Second District Court of Appeal and "enter an order scheduling the withdrawal of life- support". Accordingly, it is
FURTHER ORDERED AND ADJUDGED that Michael Schiavo, as Guardian of the Person of Theresa Marie Schiavo, shall withdraw or cause to be withdrawn the artificial life-support (hydration and nutrition tube) from Theresa Marie Schiavo at 3:00 p.m. on January 3, 2003.
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Liberty To The Captives Established in June 2001